President Obama’s hidden EPA Enabling Act

President Barack Obama delivers the commencement address at the U.S. Coast Guard Academy in New London, Conn., May 20, 2015. During his comments, Obama discussed the impact of climate change on national security.DoD screen shot

Guest essay by Eric Worrall

h/t JoNova – a group of lawyers at Columbia Law School have urged President Obama that he invoke a little known clause in the Clean Air Act, which the advocates claim would allow the EPA to immediately seize direct control over state economies, with a view to forcing down CO2 emissions.

… Fortunately for the president, there’s a new way for him to right the U.S.’ greenhouse gas trajectory before leaving office: Buried in the Clean Air Act is an extremely powerful mechanism that effectively gives EPA carte blanche to tell states to make drastic cuts to their emissions.

This provision, which can now be used thanks to the completion of the Paris climate deal, raises important questions about national sovereignty and states’ rights — questions that Republicans would undoubtedly use to try and kill such a proposal. But the benefits of using this mechanism dwarf those concerns.

A few weeks ago, a group of 13 prominent environmental law professors and attorneys released a 91-page report outlining this new approach, which would allow EPA to use existing laws to quickly and efficiently regulate all pollution sources, in all states — not just power plants and cars. The experts concluded, “It could provide one of the most effective and efficient means to address climate change pollution in the United States.”

Here’s how it works: A rarely used provision of the Clean Air Act — Section 115 — gives EPA the authority to mandate that every U.S. state cut its emissions by whatever amount the agency determines is necessary to protect public health and welfare if two things happen.

First, EPA must receive a report or studies from an “international agency” showing that U.S. air pollution is anticipated to endanger public health or welfare in a foreign country. The many reports put out by the United Nations’ Intergovernmental Panel on Climate Change over the past few decades meet this requirement. The U.S. is one of the top greenhouse gas emitters in the world, and its pollution undoubtedly endangers public health and welfare in many other countries.

Second, EPA must determine that the foreign country harmed by U.S. pollution has given the U.S. “essentially the same rights with respect to the prevention … of air pollution occurring in that country.” In other words, there needs to be reciprocity. That’s where the newly signed Paris agreement becomes important. The Paris agreement satisfies this reciprocity requirement because there are now nearly 190 countries planning to reduce their emissions, at least in part, to protect one another’s health and welfare. …

The success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air Act, titled “International Air Pollution.” This provision authorizes EPA to require states to address emissions that contribute to air pollution endangering public health or welfare in other countries, if the other countries provide the U.S. with reciprocal protections. The language of Section 115 does not limit the agency to regulating a particular source-type, or a given industrial or economic sector. Rather, it grants EPA and the states broad latitude to address international air pollution comprehensively through the Clean Air Act’s State Implementation Plan process, increasing administrative efficiency and reducing burdens on regulated companies. EPA and the states could use the provision to establish an economy-wide, market-based approach for reducing GHG emissions. Such a program could provide one of the most effective and efficient means to address climate change pollution in the United States.

This powerful provision was most likely meant to be invoked in an emergency situation, say to prevent a war, in the case that another country blamed America for damaging pollution. However the current political standoff has created a new and terrible use for this time bomb of a clause, which in my opinion has the potential to topple the constitutional balance of the United States of America.

Politico of course, is celebrating that the President has the power to seize control of the national economy, because they don’t think there are any other options currently available to reduce greenhouse emissions. Like other deep greens, Politico seem to have no problem embracing the authoritarian option, when voters fail to deliver the desired policy direction.

To his credit, President Obama has not yet acted on this hideous advice. Let us hope that for the sake of the American Republic, the President helps to defuse this dangerous law, rather than invoking it.

183 thoughts on “President Obama’s hidden EPA Enabling Act”

Not entirely stupid. The law is being used now as an instrument to bind individual’s to the will of the collective and policymaking generally. Remember Columbia is where the Earth Institute and Jeffrey Sachs are. It is also where the Center for Research on Environmental Decisions is located.

The World Bank. It was laid out in their 2015 Development report and a major focus of this falls’ annual meeting in Lima, Peru. Coordinating with the White House task Force on the Behavioral and Social Sciences,.

It’s careful planning to implement an agenda without democracy hindering the process. Imagine a group sitting down and writing the same report before Paris? They carefully worded Paris in order to target this specific element of an existing law.

I really hope no one reading this site actually believes they simply stumbled over these provisions as they desperately cast around amid the blather of it being “unenforceable” and how Obama “would not date” to use Executive Orders.

Call it whatever you wish – oligarchy, totalitarianism, etc., but never call them stupid. After all, they’re winning. Better to discuss and implement as many ways to defeat them as you can instead.

Three Rules for the Eastern-kings under the sky,
Seven for the mental-Dwarfs in their UN halls of stone,
Nine for Western Men doomed to die,
One for the Dark Lord on his dark throne
In the Land of Washington where the Shadows lie.
One Rule to ring them all, One Rule to find them,
One Rule to bring them all and in the darkness bind them
In the Land of Washington where the Shadows lie.
-Apologies to JRR

This would involve asserting that a treaty has authority to override the sovereignty of the States… something that would probably not pass muster with even today’s Supreme Court.

It would be amusing, if it weren’t so tragic, that Columbia Law thinks the “benefits” of this idea “dwarf those concerns”. Supporting a highly questionable political policy “dwarfs” the Constitution? I don’t think so.

But the Paris Accord was NOT a treaty. That is how the Administration got around having Congress give its advise and consent and put the damn thing to a vote. Such an Accord carries zero weight in the laws of the land. I wouldn’t put it past the leftist to argue it is one thing and then another, but legally it’s not binding.
I think it’s better we rely on the current PotUS’s legendary lethargy and inaction to work in our favor. Just wait until a non-leftist takes the oath in Jan. 2017 and it will be moot.

Remember, the Affordable Care Act (ObamaCare) got past the SCOTUS because it was simultaneously a tax and not a tax. Why can’t the Paris agreement be a treaty and not a treaty,like Schrodinger’s cat. ;)

AO, thank God Harvard Law’s formidible Professor Larry Tribe agrees with you. The foremost Constitutional scholar in the US. Taught Chief Justice Roberts, President Obama…and me. He is a classic Harvard liberal, and the Harvard faculty room also hosts Naomi Oreskies. When his fellow faculty members chastised him for his constitutional brief on behalf of 26 states and Peabody coal (see below comment), he reportedly told them (as a three time Harvard alum the major gifts office has been persuing me for years, so this is via unofficial back channels), “NOTHING is more important than the Constitution!”

Even if the non-treaty (of Paris) were deemed a constructive treaty, it has not been ratified by the U.S. Senate. It is, coming and going, empty “words, just words.”

Mr. Worrall (with his usual generosity of spirit) gives the Big Dope credit for not invoking what he cannot invoke. There is no legal authority for B. Hussein to do what the Columbia Communists urge him to do.

Speaking of unconstrained and idiotic control of power in the U.S., the left wing in the U.S. now has almost total control of our media. What happened to freedom of speech? Most of our freedoms have been taken control of by the left.

Should not the presses be obligated to provide a safe and non oppressed place to work for all people with various beliefs and not just beliefs which cater to mostly left ideals. I want to hear what those on the right have to say as well as the other. But workplace freedom is not free in the media these days. There is workplace discrimination in the media these days. The people who do the hiring or who decide what gets reported on discriminate against anyone with a right or centrist leaning and promote the vast amount of their left, liberal leanings without giving freedom to the speech of the right. Hiring and freedom of speech of reporters should not be based on how they think or believe, but based on the import of their story to us in society. The individual media companies are discriminating in hiring and editorial practices.

As I recall from ConLaw class way back in 1960, a treaty stands on equal footing with federal legislation. That is, a more recent federal law can override a treaty. Do I misremember? It was, of course, a LONG time ago.

JimB, there are three levels of US treaties. 1. True treaty with Senate 2/3 approved. Jefferson first defined these: eternally binding save by mutual consent to change. 2. Congressional support legislation (> 50%). These Pacts always have an opt out. Trade agreements are an example. 3. Executive authority. President does them with no Congressional involvement, in three specific areas :1. as chief executive for foreign policy (e.g. Recognizing a nation state), 2. in the role of Commander in Chief (think Nato details); 3. as part of the presidential obligation to faithfully uphold US laws. COP21 is of this executive sort, under the third condition.

It is not clear why the USA bothers with a government at all. Nixon created the EPA to bypass it. Why is anyone surprised that another group of lawyers thinks it created all-encompassing powers? Apparently the road to hell is paved with stupid.

The whole CAGW story is founded on the transient climate response. Plot the claimed TCR over time. It goes down and down. As more is understood about the natural balances to warming the value of the TCR will approach a few tenths of a degree per doubling of CO2. Apparently decision makers are not following the most important trend which is the precipitous fall in the value of the TCR.

If they did away with our sham elections, then a revolution could break out. As long as we think our votes mean something, we stay in line.

“Where a government has come into power through some form of popular vote, fraudulent or not, and maintains at least an appearance of constitutional legality, the guerrilla outbreak cannot be promoted, since the possibilities of peaceful struggle have not yet been exhausted.” .. Che Guevara

I sometimes wonder if the governments are not hiding their Peak Oil strategies behind “global warming”. By reducing civilian fossil fuel use, they will keep more for the militaries. The US Navy and Air Force are already working on coal liquefaction and biodiesel supply chains.

As someone who purchases groceries on a regular basis, inflation has been a lot higher than the “official” number.
As to unemployment, the only reason why it’s so low is because millions have given up looking and are no longer counted as unemployed. (That’s the labor participation chart that dbstealy presented.)

I wrote the following soon after the failed 2009 IPCC Conference in Copenhagen. It remains pertinent today.

The AGW-scare was killed at the failed 2009 IPCC Conference in Copenhagen. I said then that the scare would continue to move as though alive in similar manner to a beheaded chicken running around a farmyard. It continues to provide the movements of life but it is already dead. And its deathly movements provide an especial problem.

Nobody will declare the AGW-scare dead: it will slowly fade away. This is similar to the ‘acid rain’ scare of the 1980s. Few remember that scare unless reminded of it but its effects still have effects; e.g. the Large Combustion Plant Directive (LCPD) exists. Importantly, the bureaucracy which the EU established to operate the LCPD still exists. And those bureaucrats justify their jobs by imposing ever more stringent, always more pointless, and extremely expensive emission limits which are causing enforced closure of UK power stations.

Bureaucracies are difficult to eradicate and impossible to nullify.

As the AGW-scare fades away those in ‘prime positions’ will attempt to establish rules and bureaucracies to impose those rules which provide immortality to their objectives. Guarding against those attempts now needs to be a serious activity.

Bureaucracies. The problem with them isn’t that they are given the responsibility to implement legislation or to report to elected representatives what they have found out. The problem is when they are also given authority to implement their “solutions” independent of the elected representatives.
Then whoever directs the Bureaucracies has become independent of the elected representatives.

It’s even worse than that. A speech at the Virgina Ratifying Convention: June 5, 1788
(My emphasis; to compare then with now):

“This Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Your President may easily become king.

Your Senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horridly defective.

Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad?

“Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.

“If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design; and, sir, will the American spirit solely relieve you when this happens?

“I would rather infinitely — and I am sure most of this Convention are of the same opinion — have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke.

“I cannot with patience think of this idea. If ever he violates the laws, one of two things will happen: he will come at the head of his army, to carry every thing before him; or he will give bail, or do what Mr. Chief Justice will order him.

“If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne?

“Will not the immense difference between being master of every thing, and being ignominiously tried and punished, powerfully excite him to make this bold push?

“But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your President! We shall have a king: the army will salute him monarch: your militia will leave you, and assist in making him king, and fight against you: and what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?“

dbstealey
Maybe that’s why we got the 2nd amendment. If the power and abuse of our government become to much to bear, we shall be obliged to redress our grievances with it. This is why we should actually be allowed access to weapons similar to what the military has access to. At the time the 2nd amendment was written, the rifle and cannon were the most potent weapons. Now, our right has been reduced to only semi auto rifles and pistols… : )

Yet you repeatedly lie about what socialism entails.
Just because you socialist friends don’t like the truth, doesn’t turn it into a lie.
Socialism is a system where govt steals from those who work in order to buy votes from those who don’t want to work.
That does increase the freedom of those who don’t want to work, but it in no way increases freedom overall.
National Socialists are still socialists, even if it embarrasses you to admit it.

Poor little Richard, I won’t accept his claim that the national socialists are right wingers, and according to him this makes me a neo-naz!.
Up until this moment, I disagreed with you, but I never doubted your integrity.
If this is an example of how you “tell the truth”, then you obviously have no idea what the truth is.
I would demand that you apologize for this slur, but I doubt you are man enough to do so.

Cruz is the only politician that seems to understand the global warming/climate change issue or at least able to clearly state the facts. Unfortunately non of the moderators in the debates will allow him to explain his position. BY the way I understand that the law gives the EPA the power to not invoke the the volume of ethanol stated, in fact the EPA is not currently requiring the % renewable in the bill because cellulosic ethanol can not be produced in the quantities as expected by the original bill. Ethanol from corn IS NOT cellulosic, and it offers no environmental advantage over fossil fuels according to the EPA.
At best the bill is complicated:https://www.washingtonpost.com/news/fact-checker/wp/2016/01/14/the-candidates-and-media-are-getting-the-iowa-ethanol-debate-all-wrong/
” “The RFS has proven unworkable and costly. Its mandate that an increasing percentage of renewable biofuels be blended into gasoline and diesel each year ignores the reality there are insufficient amounts of some biofuels to meet the standard,” according to a news release on Cruz’s Senate website about his stance against the RFS. “It imposes significant costs, and offers few, if any, benefits. The RFS should be phased out so producers and refiners can focus on maximizing domestic resource potential.”

On the campaign trail, Cruz has framed his opposition to the renewable-fuels mandate as his fight against Washington. In a Jan. 6, 2016, op-ed in the Des Moines Register, Cruz argued that he is fighting against the EPA from regulating ethanol, and instead creating a level playing field without the mandate and without any energy subsidies.

There is no set start time to the five-year phase-out in Cruz’s proposal. If elected president, Cruz wants the phase-out to begin when his term starts in 2017, and last through 2022.

“If they did not pass legislation phasing out the standard, as you note, the standard shifts from a legislative mandate to a ‘future rule’ set primarily by EPA,” said Cruz’s campaign spokesman Rick Tyler. “Under a Cruz administration, in 2022, in the absence of phase out legislation, the standard would be set to zero.””

This could be argued in court for decades making the Lawyers richer and the common citizen poorer.

How can any President “abolish the EPA”? EPA was created and empowered by Congress. I guess you missed that part. SCOTUS, when asked to determine if EPA had the power to declare CO2 a “dangerous pollutant” said “They sure have. Congress gave them such rule-making power. The court cannot intercede, only Congress can clip EPA’s wings.” Or, words to that effect.

Actually, b356, Mass.v. EPA is more complicated, and turns on Congress’ horrible circular definition of an air pollutant as something which pollutes, given a complex 8 part test of what pollution might mean. Essay Clean Coal goes into this a bit, expecially in the footnotes.
You are correct about the fix. Congress clarifies CCA ‘pollutant’. But that requires either a president who won’t veto such legislation, or a vetoproof congressional majority. Vote wisely. And, as we do in Chicagoland (my former home town) early and often.

The President can propose legislation. So with luck (and good voting by the American people) if we end up with (say) a President Cruz, and solid Republican majorities in Congress, they could work together to rein in the EPA, or maybe abolish it altogether in favor of letting the states handle such matters.

“Point being a future skeptical President cannot “abolish” EPA, nor can he reign in EPA.”

Apparently you’ve never heard of Executive Orders. He could fire 90% of the workers, or set them to doing meaningless tasks, issue an order that all EPA actions need his personal approval, etc. Congress created, but does not run the EPA. And recent history has shown us that Executive Orders can even direct government workers to ignore the laws.

“kcrucible, apparently, you are unaware of how the EPA can be abolished:”

I didn’t say that Congress couldn’t abolish the EPA. I said that a President could do substantial things to “reign it in” which has thing to do with congress whatsoever. COnversely, a president that reveled in using a phone and a pen could delegate the job of harassing the people to another entity, even if the EPA didn’t exist.

For example, directing the Dept of the Interior to interpret various laws in ways that mimic what the EPA currently does. the EPA is a tool. The only question is what is the job being attempted, and which tool is the most convenient to that purpose?

I’ve NEVER seen the link you are referenced. However, here is one for you :

“1970-72: Created EPA which passed Clean Air Act

While there was some hesitation and concern regarding Nixon’s intentions in creating the EPA, there is a general consensus that Nixon’s true motivation was to purify the nation from an environmental standpoint. Disillusioned by the lack of cooperation and cohesion on environmental policy, as well as by the overall ineffectiveness of the NEPA, Nixon utilized an executive order to create the EPA, an independent government organization, in late 1970. The EPA subsequently passed its first piece of legislation, the Clean Air Act, in 1972. While Nixon is generally scorned as a presidential figure, his actions in the environmental realm appear, by most accounts, to have been genuine and thorough and are often overlooked in the historical record.
Source: Cameron Lynch in W&M Env. Law Review, vol. 26 #1, p.219 , Jan 1, 2001”

BRIAN IS NOT CORRECT, AND NEITHER ARE YOU, JANICE MOORE !

Obviously, JANICE MOORE, you’re are not old enough to have been an adult during the Nixon administration as I was.

“The EPA was proposed by President Richard Nixon and began operation on December 2, 1970, after Nixon signed an executive order. The order establishing the EPA was ratified by committee hearings in the House and Senate
…
In 1970, President Richard Nixon proposed an executive reorganization that would consolidate many of the federal government’s environmental responsibilities under one agency, a new Environmental Protection Agency. That reorganization proposal was reviewed and passed by the House and Senate”

So yes, Nixon used an executive order to “create” it, but it also took Congress to ratify its existance.

Mr Courtney has been repeatedly warned on this blog that [his] language sometimes exceeds the blog rules of conduct, this is one of those times and he modified the word [Nazi] so that it would not get caught by the spam filter. Take a 48-hour time out Mr Courtney

“An ‘appropriate’ governmental ‘determination’ must be the result of a process of
reasoning. It cannot be an arbitrary fiat contrary to the known facts. This is inherent in the meaning of “determination.” It is implicit in a government of laws, and not of [individuals].” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 136 (1951).

a. CAA (Clean Air Act) – Standard of Review — Science to Be Considered

“(9) In the case of review of any action of the Administrator to which this subsection applies, the court may reverse any such action found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or
(D) without observance of procedure required by law, if (i) such failure to observe such procedure is arbitrary or capricious, (ii) the requirement of paragraph (7)(B) has been met, and (iii) the condition of the last sentence of paragraph (8) is met.” “Clean Air Act,”42 USC 85 §7607(d)(9).

“(5) In promulgating a rule to which this subsection applies (i) the Administrator shall allow any person to submit written comments, data, or documentary information; (ii) the Administrator shall give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions; (iii) a transcript shall be kept of any oral presentation; … .” “Clean Air Act,” 42 USC 85 §7607(d)(5). ***

CAA Applied to Facts in Massachusetts v. EPA

EPA’s own Inspector General, in a procedural review issued in September, 2011[Procedural Review of EPA’s Greenhouse Gases Endangerment Finding Data Quality Processes, Report No. 11-P-0702, at 36 (Sept. 26, 2011) at: epa.gov/oig/reports/2011/20110926-11-P-07 02.pdf] faulted EPA for procedural deficiencies including the refusal to use the Scientific Advisory Board process. Scientists’ Amicus Brief at 22. [Link:http://sblog.s3.amazonaws.com/wp-content/uploads/2013/07/GW-Amicus-2013-05-23-Br-of-Amici-Curiae-Scientists-ISO-Petitions-fo….pdf (Note: this amicus curiae brief of Scientists against EPA is not excellent, but for basic issues it is okay (not well-written and not powerfully argued in words nor in how the science was presented, BUT, it has law cites and other good info. in it and is a good source for anti-AGW (Anthropogenic Global Warming) arguments.)] “In particular, the Inspector General criticized EPA for failing to follow all recommended steps for an external peer review by independent experts. See Inspector General’s Report, at 36.” Scientists at 23. {emphasis mine} ***

The D.C. Circuit Court appears to have aided and abetted EPA’s contrived ignorance when it declined to grant leave for filing of the Brief of Amici Curiae Scientists in Support of Petitioners Supporting Reversal, Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, No 09-1322 (CADC June 8, 2011), ECF No. 1312291. Scientists at 23. [Note: the Amici Curiae Scientists’ brief above would likely be a much better source of CO2 science than the rather crude, though accurate, science in Scientists (amici for Utility Air … v. EPA)].
“In short, EPA’s process was far less rigorous than it should and could have been. And the [C]ourt of [A]ppeals erred in failing to recognize the deficiencies in it.” Scientists at 24.

The “Unalterably Closed Mind” standard for removal of biased Agency official supports holding the EPA Administrator responsible for her gross negligence in creating an accurate and complete science evidence record. An agency head [FTC Commissioner, in this case] “should be disqualified … when there is a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding. The “clear and convincing” test is necessary to rebut the presumption of administrative regularity. See, e.g., Withrow v. Larkin, 421 U.S. 35, 55 (1975)… . The ‘unalterably closed mind’ test … [will] disqualify[] [rulemakers] unable to consider meaningfully… .” Association of National Advertisers, Inc. v. Federal Trade Commission, 627 F.2d 1151,¬¬¬ 1170 (D.C. Cir. 1979).

Comment:

That the D.C. Circuit Court gave the EPA the option to avoid looking at all the best CO2 science evidence does not excuse EPA’s negligence, if not recklessness, in promulgating a rule based on a grossly inadequate and, moreover, inaccurate, record … .

Re: Computer Model Projections

The U.S. Supreme Court in Sierra Club v. Costle while allowing the EPA to use computer models at all, expressed significant skepticism as to their accuracy: “We are more sympathetic to Sierra Club’s complaint about the reliability of EPA’s econometric model. Such models, despite their complex design and aura of scientific validity, are at best imperfect and subject to manipulation as EPA forthrightly recognizes.116 {emphasis mine}

{116 footnote} EPA’s Administrator stated:The truth of the matter is that the model that we are using is a reasonably good model, but you can alter the outcome from that model dramatically by just simply changing a few key initial assumptions that you crank into the model. I think those assumptions need to be tested, frankly, in a public debate and in a formal rulemaking proceeding, where people comment for the record, set out their alternative assumptions, saying, “We think this is really more realistic.” Ad.Doc. No. III-C-1, supra note 18, at 15-16, J.A. at 2956-57.

The [computer output is] ultimately [] shaped by the assumptions adopted at the outset, and can change drastically for a given range of input data if key assumptions are adjusted even slightly.117 The accuracy of the model’s predictions also hinges on whether the underlying assumptions reflect reality, which is no small feat in this volatile world.” Sierra Club v. Costle at 332.

The Supreme Court has in the past evaluated the skill of the models the EPA relied on “to ascertain whether the results have been improperly skewed by the modeling format. We conclude that EPA’s reliance on its model did not exceed the bounds of its usefulness … . We are in fact reassured by EPA’s own consciousness of the limits of its model,127 and its invitation and response to public comment on all aspects of the model.128 The safety valves in the use of such sophisticated methodology are the requirement of public exposure of the assumptions and data incorporated into the analysis… .” Sierra Club v. Costle 657 F. 2d 298, 334 (1981). {emphasis mine}

Comment:

With regard to the CO2 rule (almost certainly promulgated subject to APA §§556 and 557):

1) the EPA excluded expert science testimony of vital importance to truth, did not respond to highly relevant, “new”-to-agency, data; and it based its rule on terribly flawed “science” (including prove-failed climate models with no “public exposure of the assumptions and data”). Thus, the CO2 ruling was “unsupported by substantial evidence,” to the point that the rulemaking was, as to explicit discretionary authority, “arbitrary,” and, thus, certainly, as to implied discretion, “unreasonable;” and also, thus, the CO2 ruling

2) violated the Fifth Amendment’s requirement of due process (a reasonable opportunity to be heard) as well as being a regulatory taking of the private electric companies’ property, i.e., their ability to produce their product, with no “just compensation.” U.S. Const. amend. V.

As a result of the EPA Administrator’s excluding from record much valid, well-respected, widely held, scientific analysis: 1) the record was grossly biased and incomplete; and 2) therefore, the CO2 rule was not promulgated in a rational, careful (in other words, non-negligent) manner. Although the D.C. Circuit allowed the EPA to make this exclusion, such judicial acquiescence does not excuse the agency’s blatantly negligent (if not reckless) decision making. “There is a substantial likelihood that the [CO2] rule would have been significantly changed” but for the Administrator’s artificially narrowing the scientific expert testimony and evidence considered.

Thus, per APA §706, the court should issue a declaratory injunction stopping the enforcement of the human CO2 “endangerment” rule at least until the incomplete agency record is supplemented after public hearings so that it contains all the best current science on human CO2 and its conjectured effect on the climate of the earth. The EPA’s refusal to even consider evidence from the climate scientists testifying against CO2 “endangerment” rule was a “strong showing of bad faith or improper behavior,” thus, the court should closely scrutinize the CO2 rule making by the EPA here.

let the EPA explain this:
====================
the flatline in CO2 levels from 1940 to 1950 from NASA’s own data should be a WUWT article! Given the war effort CO2 should have increased, but it didn’t. Given that no one can explain this, it puts the lie to fossil fuels being the source of CO2.

Human activity may well be the cause of increasing CO2, but it isn’t the burning of fossil fuels. It has to be something else, like agriculture or land clearing. Something that has been overlooked.

[sigh] Please, folks, EPA is Congress’ spawn. EPA was endowed with rule-making powers and independence crafted to *prevent* Presidents from meddling with EPA’s “Prime Directive” as it were, to wit, “Saving the Planet For The Children, Gay Baby Whales, Adorable Polar Bears, and Other Living Things”.

“EPA was endowed with rule-making powers and independence crafted to *prevent* Presidents from meddling with EPA’s “Prime Directive” as it were, to wit”

That’s only if Congress has the balls to back the EPA being meddled with. Theoretically, Congress can defund the government until the executive comes back into line or impeach a president too. Neither actually happens in reality.

In reality, the executive can do whatever it wants to, because it requires a veto-proof majority in congress to oppose him, and in an age where party loyalty supersedes loyalty to country and doing what is “right”, that’s simply never going to happen.

The reality is that there is no real evidence that CO2 effects climate. There is reason to believe that the climate sensitivity of CO2 is really 0.0 which means that even if all the CO2 in the atmosphere were completely removed, climate would not be affected. There are many good reasons to be conserving on the use of fossil fuels but climate change is not one of them. In their first report the IPCC published a wide range for their guess as to what the climate sensitivity of CO2 actually is. In their last report the IPCC published the exact same values. So for over two decades of effort, IPCC sponsored research has uncovered nothing which would allow them to refine their guesstamate. They must be afraid that if they announced that the climate affects of CO2 might be far less then they first anticipated that they would lose their funding. The temperature profile of the atmosphere can be completely explained without consideration of any contribution from the LWIR absorption properties of so called greenhouse gases. The postulated radiant greenhouse effect upon which the AGW conjecture depends, does not really exist either in a real greenhouse or the atmosphere of any planet in the solar system including the Earth.

Of course the big print easy read summary for policy makers did not summarize WG2 report it made up scary prose to fit the requirements of the policy makers who wrote it. But the states now know the real science output from even a biased source says small impact even relative to government policies.

” However the current political standoff has created a new and terrible use for this time bomb of a clause, which in my opinion has the potential to topple the constitutional balance of the United States of America.”
—————–

Now that the clause is out in the open and known, our elected representatives in DC should immediately act to remove that clause from the laws which enable the EPA.

Not very good lawyers. The argument they make concerning CCA section 115 is quite flawed. Section 115 is available on line. i read it realier before posting at JONova’s. There are two problems with this silly warmunist legal brief from Columbia, home to Hansen, Schmidt, and GISS.
The first is that 115 para 1 requires an international report that US pollution is, or will, specifically harm some other country. This was possible to show with SO2 from the US midwest producting acid rain harming unbuffered Ontario shield lake fisheries. This is impossible to show for CO2, for three reasons. 1. US is not the biggest emitter, China is. 2. US emissions have gone down and will continue to do so thanks to fracked shale gas and CCGT, since 1/3 of the old coal fleet was due to retire anyway by 2025. (1/3 of coal capacity is over 42 years, and the average retirement age since 1995 has been 48. Stuff wears out). 3. CO2 is well mixed. uS CO2 is same as Germany’s, India’s and China’s.
2. Section115 para 4 requires legal reciprocity for the EPA to be able to order state level action. Again, this was possible with high sulfur Illinois and Indiana coal generation affecting Canada, since there are a number of bilateral environmental agreements such as the Great Lakes compacts (water take, fisheries). It is absurd to argue COP21 provides the same. It is expressly non-binding and voluntary. It gives the US no legal rights to tell anyone else what to do, and vice versa. So the specific reciprocity requirement is not met.
A warmunist wet dream from Columbia. Only necessary because SCOTUS will likely strike down the Clean Power Plan as unconstitutional EPA overreach. Harvard Law Tribe’s con law brief on behalf of the 26 states is masterful, and contains three separate unconstitutional grounds. One suffices. Chief Justice Roberts will rule on the 26 states lawsuit request for a preliminary injuction staying CPP early next week. He only got the appeal last Thursday, and today ordered the EPA to respond by this Thursday. I bet he overturns the appeals court stay denial.The states would be harmed immediately and significantly by CPP, and they have a significant chance of winning their constitutionality challenge. Those are the only two requirements for granting a stay pending adjudication.

… 115 para 1 requires an international report that US pollution is, or will, specifically harm some other country. *** This is impossible to show for CO2, for three reasons[one controlling reason: there is no evidence that proves human CO2 can cause ANY change in the climate of the earth, much less any specific, reasonably direct, harm to anyone</b.] …

To argue with them about well-mixed and China being a far greater emitter of CO2 is all well and good, but, it diverts us from the key issue: CO2 is NOT a proven cause of harm.

Janice, you are of course correct. I agree. But that does not matter in a court of law. (Boy, did that get some getting used to). I gave here legally precise arguements. Your notion that mere common sense facts would prevail is unfortunately incorrect in modern courts.
Highest regards, since together we can prevail.

The fact that the best science says that there is, as of today, no data proving human CO2 – climate nexus is the key issue, here. Thus, I cited it.

You gave arguments above with an unstated “given.” That is, “given that the EPA’s finding about human CO2 was the result of properly following its own rules, including those requiring that the best scientific evidence be considered in its rulemaking,” … . You then, proceed to argue as if human CO2 = “pollutant” is good science. I understand your reasoning, but, I do not think it the wisest legal strategy. The “CO2 = pollutant” rulemaking needs to be attacked directly. THAT is the key issue, Number I. We should not “give” them that. It should only be argued in terms of, “Number II. If the court should reject our argument that best science says that human CO2 is not a pollutant, THEN, we argue… China…. well-mixed… etc… .”

Thanks for bringing the thoughts of a lawyer who has studied constitutional law under such a famous prof. Your remarks are very reassuring.

But I do have a question. Is it necessary for POTUS to direct the EPA do this? Couldn’t the Sierra Club (with the blessing of the EPA of course) bring suit in the D.C. Court of Appeals, saying the EPA is REQUIRED by Section 115 to act. Since the D.C. Court is notorious for giving the EPA what it wants, I can see them going along with this argument. SCOTUS is another matter though.

Never happen.
As screwed up as so many things are I believe the limit to what level of crazy overreach can be imposed was the ACA.
It will serve as the poster child for what not to do.
So while these people fantasize about Obama being able to decree it so the breaks by the states and American people would bring it to a screeching halt.

Every American should read this book. It was written by Jan Kozak, a m@rks*st in Czechoslovakia who explained how a free country’s parliament can be used to legally impliment a communist government and even have the citizens themselves vote in their own slavery. He followed this up by actually creating it in Czechoslovakia. There is no doubt this old book is now must reading material for lefty governments. It has been republished and is even for sale on Amazon for $3.00!!

What the Columbia lawyers are doing is advising exactly the same tactic as Kozak. When the iron curtain came down, freedom flowed in, but the apparatchiks and those who had no other skills but what they did for a living in their own countries in the political sphere flowed out and were welcomed by Europe and America in their institutions and academia. They also saw a ready made ‘opposition’ in NGOs and UN that they could manipulate. Remember the USSR was a nation of chess players while Europe was a nation of useful fools. In the last couple of decades, these have become very “American Activities”.

@ Gary Pearce, 2:14 pm. Thank you sincerely for passing that information on and the link to it. I read the book about 8 years ago have told MANY people to read it (but not just before going to bed). It is (as you see what is happening today), a frightening , powerful and TRUE explanation of why we are in the downfall of the West . This has been planned with great care and with the “long view” in mind, for over 7 decades if not longer ( Fabians?)
I urge everybody to read this book and share it with as many people as possible. I am not a scientist but this site is filled with them and you are always looking for the truth. You find it in this book. If there is a group that is looking out for their descendants it is these people and believe it isn’t you or me! ( some Asian cultures have done so in the past, Always the long view!).

“You Americans are so gullible. No, you won’t accept communism outright, but we’ll keep feeding you small doses of socialism until you’ll finally wake up and find you already have communism. We won’t have to fight you. We’ll so weaken your economy until you’ll fall like overripe fruit into our hands.”
~ Nikita Khruzchev

A little excerpt from a most noble document…
…The Declaration of Independence

“IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security… (snip)

And the pertinent part to this discussion

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Bryan- The document you cite wasn’t written to move people to vote King George out of office. I’ve been voting since I was 18 and I’ve never seen a box you can check to simply remove an incumbent. (Wouldn’t that be a great change?) The vast majority of elections consist of nothing but bums, and you get to choose which bum you would prefer. Witness our current crop of presidential bum hopefuls. This is the ultimate problem with any form of democracy. Once the population is more than 50% uneducated, uninterested, and completely self indulgent, then that’s who picks the bums. It’s a sort of negative feedback loop. I’m not saying it’s time for revolution but read our founding fathers’ list of grievances with English rule under King G3 and see which grievances have come back. Voting won’t save us. Voting gave us Barack Obama. I welcome any solutions more extreme than voting, but less extreme than armed revolution. Until then I’m counting the hours until No Mo’Bama day, Jan. 20, 2017. Every year following I will celebrate that anniversary.

Hoyt Clagwell February 1, 2016 at 3:33 pm
Bryan- The document you cite wasn’t written to move people to vote King George out of office. I’ve been voting since I was 18 and I’ve never seen a box you can check to simply remove an incumbent. . .

The problem is that the Founders did not give us a ‘democracy’. They gave us a representative Republic; they were terrified of the mob. Letting the 50+% determine the leadership is a huge mistake. We need to go back to Constitutional principles. Read Mark Levin’s The Liberty Amendments, and support the movement for an Article 5 Convention of States:

L.E.- I am definitely a fan of Mark Levin, and I would have to agree that Article V is the best chance this country has right now, but I have to disagree with you if you are suggesting there is no democracy in the American election system. This country was founded on democratic principles as a representative republic, but the election system starts with a democratic vote of the people which is then used by our representatives to allocate electoral votes. It has the same flaw as straight democracy. Because the electoral votes don’t always represent equal numbers of voters you can get what we had in 2000 between Bush and Gore, but you would have to admit that generally speaking, 50+ % is what elects leadership in this country.
The way the ACA was passed proves this country is not a democracy- nobody ever wanted my opinion about it.

Hoyt Clagwell: The Electors were originally not selected by democratic vote. Article II, Section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . .

The various States have adopted primaries or caucuses for appointing Electors, but they are not obligated to do so, and did not for much of our history (IMO the primary system that has evolved works to the detriment of good government and Constitutional principles, wildly expanding the time for presidential campaigns and turning them into media circuses). The state legislatures could appoint Electors any way they want, even (as William F. Buckley suggested) by taking the first N names out of the Boston phone book.

L.E. -I wasn’t referring to how the electors are elected. I was simply pointing out that a democratic vote of the people is used by the electors to allocate their votes for president. While they may not have to, I can’t remember the last time a majority vote of state citizens was ignored by the electoral college. I think all in all we probably agree more than we disagree, but I stand by my understanding that the leadership of this country is elected democratically. Whether a democratic vote of the people, a democratic vote of the electoral college, or a democratic vote of congress… it’s still 50+% wins isn’t it?

HC: You’re right that the Electors are constrained today by the popular vote in their respective states, though I’m not clear on how constrained: it may depend on State law. I think that after one vote the Electors can, if no candidate has a majority, change their votes. And of course, if no candidate can achieve a majority of Electors, as might happen in a three-way race, it falls to the House of Representatives to decide the winner (each State delegation having one vote).

My point is that the Founders went to considerable lengths to avoid ‘direct democracy’, and by tying the Electoral College to popular vote in the States, we have strayed from the Founders’ intent. Of course the demagogues of the Left want us to stray even further, by abolishing the Electoral College. I think we should go the other way and make the Electors independent of the popular vote. My guess is that this could be accomplished without a Constitutional Amendment, by the individual States. But of course there would be a huge uproar.

Back on topic: The thrust of Mark Levin’s book and the movement for a Convention of States is to rein in the ‘fourth branch of government’, the unelected Leviathan of federal departments, programs, and bureaucracies that spew regulations and edicts like fish spawn, and ride roughshod over the prerogatives of the States and the citizens. The EPA is a prime malefactor, but it is by no means the only one.

The House was directly elected by the people, but senators were originally appointed by the state legislatures and their job was to represent the interests of the states in the federal govt. One of our two biggest mistakes was making senators directly elected. If you want to know why state and local govts are little more than branches of the federal govt now days, this is why.

What you are asking for would bring trigger an avalanche of inevitable responses and bring the onset of the bloodiest period in mankind’s history and for that sentiment,
you anonymous provocateur,
you can go straight to HE double L.

Eric W. states ” which in my opinion has the potential to topple the constitutional balance of the United States of America.” I my opinion, the constitutional balance was toppled a long time ago. Maybe an action such as this would be the proverbial straw, and give the states enough cajones to finally tell the out of control federal government to ef off. While governmental organizations such as the EPA, FDA, USDA, and any other letter combo one might think of are the creation of congress, don’t they reside in the executive branch and thus under the control (whim) of the president?? Time for the states to take back their republic, and the people their government–too much unconstitutional activity for way too long up there inside the beltway.

Liberal thought (aka Politico) has long been strongly biased in favor of authoritarian rule vs democratic – people – rights. If Obama were to take such a step it might well be regarded as a “high crime and misdemeanor” as described in the US Constitution. Hopefully the effects of such a step, if taken, would be delayed by legal maneuvers until the opposing political party has obtained an overwhelming majority in the Senate (where the trial would be held).

This is easy. No problem I can not solve by doing nothing. Withdraw the navy except for subs with nuke missiles. The loons will close the sea lanes. Fossil fuel use will plummet but the US will have plenty.

Sure some folks might die because food shipments will stop.

Working in the power industry I am not amazed that safety regulations are less stringent for agriculture.

My point is that we live in an interconnected world. Real problems supersede political ones. When there is not energy to keep homes warm and schools open, then the problems gets solved by getting a new politician.

My interpretation of the regs allows that all the states should be required (by EPA) to limit emissions to 1/50th of the total for the country, so as to best protect the rest of the world.

So, we need to figure out what our country’s allowable output (to protect italy) is, and then stick with it. (maybe the geniuses at EPA get some advice from the people at duke)

Montana is not harming france, italy or any other country… but California, New York, Texas, and those other high emitters need to to be reigned in and limited. Keep in mind that the more green energy they use to replace the CO2 associated stuff, the bigger positive boost to their economies … so they (the large emitters) shouldn’t complain.

After the U.S. economy gets “killed-off” there won’t be many jobs for lawyers. They will have to scramble around looking for any kind of jobs they can get just like lawyers had to do during the Great Depression.

The same will be true for economists. No business and no economic forecasts needed.

I hope that Obama is intelligent enough to realize that IF he tried to do this stupid thing, he’d be risking impeachment, an ignoble finish to an already horrendous presidency. And probably some Democrats in the Senate would be smart enough to know that they’d been hitched to his Marxist/Socialist wagon long enough.

Proof that it is all about control. If CO2 is the cause of warming and all of the other doomsday scenarios, then WHY are they not building 10 new Nuclear Power Plants a year until all electricity comes from clean zero emission power which produces less CO2 than any renewable (from cradle to grave)? Why are they shutting down Nuclear Power Plants?
It is all about CONTROL!

They were saying much the same thing before Reagan was elected in a landslide.

But no federal employees quit. They were just being spoiled gasbags. They knew that the minute they quit, there’d be a line of applicants from LA to SF applying for thier non-essential bureaucrat jobs.

The trade publication Government Executive reports that a survey of federal employees found that 14 percent said they would consider leaving the federal service if Trump were elected. Another 11 percent said “maybe.” Democrats and Democrat-leaners were more likely to say they would bail on their job if Trump were elected — 26 percent of whom said they would definitely leave compared to 4 percent of
Republicans and Republican-leaners. Another 16 percent of Democrats and Democrat-leaners said they would “maybe” leave compared to 4 percent of Republicans and Republican-leaners.

First – despite the CAA wording, the fact that the regulation is enforced without the approval of the Senate will call into question the Constitutional legitimacy of the pResident enacting what is essentially a treaty.

Second – it will have to be proven in a court of law that the “offending” emission originated in the US.

Third – such action might trigger a civil war. You can push people only so far. This time, the seceding states would most likely enjoy the advantages of industrial and military supremacy, quite the opposite of the last time.

This is the reason they will use to Enabling the Act. The World Health Org., i.e. UN is fully behind it.

Zika and Climate

Guest essay by Eric Worrall The Australian Journal of Pharmacy has just tried to link climate change, to the terrifying Zika Virus outbreak in South and Central America. The Zika Virus, a mosquito born disease, has been implicated in an upsurge of serious birth defects. CLIMATE CHANGE COULD WORSEN DISEASES LIKE ZIKA VIRUS

Lawyers are only ever interested in winning. They are NEVER interested in the truth, justice or arbitrating fairly when laws at one level contradict those at another.

For these lawyers to say ‘The Paris Agreement’ allows ‘activation of a US Law’ without questioning whether either the Paris agreement or the US law have any basis in scientific fact just shows you the limitations of lawyers in achieving justice.

That these lawyers have no interest in the US Constitution is also rather un-American……

the use of “CO2 pollution” is technically wrong on its face. CO2 is a vital part of our atmosphere. Real pollution isn’t. Real pollution can be diluted to undetectable levels and things get “better.”

The solution to pollution is dilution, as the saying goes. If that were to somehow happen to CO2, the biosphere would collapse completely, except for deep microbial life and deep ocean hot vent mineral-fed life forms.

outlining this new approach, which would allow EPA to use existing laws to quickly and efficiently regulate all pollution sources, in all states

Presumably the ‘pollution’ source would be that well known base of the planetary food chain known as Carbon Dioxide. (water + CO2 + sunlight = the entire food chain). EPA promoting CO2 as some kind of pollutant is the equivalent of killing millions of people without using the tedium of using Zyklon B.

The world population grows and starving them (of CO2) is the equivalent of some whack job plan to kill them off. Those people need to be in the food chain and the EPA is trying to deny them that position. Nuremberg is something that comes to mind for some reason.

The arrogance of those in power, especially when motivated by the egotistical belief that only they can save the world, is such that they will ignore all legal, moral, and ethical constraints to do what they sincerely believe is right for everybody else. Never mind that everybody else disagrees with them.
This is the commonality among all autocratic, dictatorial, and totalitarian regimes.
‘They are doing it for the good of all of the rest of us.’
The only thing worse I can think of is that there are naive fools who will energetically support this erosion of their own rights.

The scariest thing in the world is a person who is convinced that he is in the process of perfecting mankind. Such a person will let nothing, not even mankind itself stand in his way.
Look at how socialists/communists have murdered millions without blinking an eye.

Brings to mind on of my favorite quotes:
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”